*1
1980]
Wilcox
v Wilcox
WILCOXv WILCOX
6, 1979,
43938,
Lansing.—
December
at
47069. Submitted
Docket Nos.
15,
appeal applied
September
for.
1980. Leave
Decided
defendant,
Wilcox,
Plaintiff,
sought
Kent
a divorce from
Elizabeth
Brown, J.,
Court,
Ingham
L.
Circuit
Thomas
The
Wilcox.
part
judgment,
granted
of
As
of the divorce
the divorce.
years
age, was ordered to be
9 and 12
of
their two
physical
of
jointly by
with
and defendant
held
As to
on alternate weeks.
to be with each
the children
property,
title
the court ordered that
of the marital
the division
plaintiff,
equity in
with the
home be awarded
to the marital
assignment,
equally upon its sale or
that home to be divided
remarriage
upon
younger child
upon plaintiff’s
death or
$73,000
equity
age.
two other
reaching
years
Of the
$29,000,
represented one
properties,
which
received
defendant
properties
equity is
equity
after that
in these
half of the
$15,000
by plaintiff in one of
made
investment
reduced
share,
marriage.
prior
defen-
properties
Out of his
to the
$7,500
gross.
pay
as
was ordered to
dant
appeal
appealed.
not filed
claim of
was
Because the
Plaintiff
judgment,
entry
days
the trial court
within ten
1963, 803.6,
limited, by
original appeal
of GCR
reason
was
question
of the children.
matters other than
respect
appeal
sought delayed
leave
Plaintiff
appeal
Delayed
custody.
was denied
question
leave
of child
to.
29,
May
Appeals.
order
Docket No.
the Court of
[1-4,
[2,
5[7]
[5]
[11,
[12]
"Split,”
42 Am Jur
Child’s
59 Am Jur
9]
24 Am Jur
695.
24 Am Jur
6, 8-10,13]
Am Jur
24 Am Jur
24 Am Jur
wishes as factor
"divided,”
2d, Appeal
2d, Infants 43.§
2d,
2d,
2d,
References
2d,
Parent and
Divorce and
Am
2d,
Divorce and
Divorce and
or "alternative”
Divorce
Jur
2d,
for Points in Headnotes
awarding custody.
Child 33.
Error 868.
Separation 783.
Divorce and
Separation 800.
Separation
§
§
Separation 784.
§
§
Separation
§
790.
§
4 ALR3d
children. 92
§
799.
1396.
ALR2d
100 sought
appeal
Supreme
1979. Plaintiff
leave to
Court. In
appeal,
Supreme
lieu of leave to
Court remanded the
Appeals
matter to the Court of
for consideration as on leave
(1979).
granted
granted.
appeal
requires joint custody upon of children the divorce of the parents. custody 2. Joint over a child should be awarded where the parents agree joint custody is in the best objection by parents interests of the child. An one of the not, joint custody is not in the best interests of the child does however, preclude joint custody. an award of legal custody joint physical 3. Joint is differentiated from legal right custody in that is concerned with the making parents of both to be involved in those decisions which child, significantly the life of the such as decisions affect about care, joint physical the child’s education and health while arrangements concerning is concerned with the supervisory by parent. immediate control of the child each Any dispute parents 4. between over the of a minor child must be decided on the basis of the best interests of the joint legal custody child. While the trial court’s award of was proper, alternating physical custody the award of was not in parents the best interests of the since the were unable mutually agree arrangement. Physical custody to such an the children should have been awarded to mother. The questions proper trial court shall determine the level of support rights child and the extent of visitation with defendant. questions property 5. The of the division of the marital alimony the award of were matters the discretion of within Appeals trial court. Since the Court of is not convinced that it occupied would have reached a different result had it court, position of the trial the trial court’s determination with respect property alimony division and the award of gross is affirmed. part, part Affirmed in reversed in and remanded. Beasley, J., parent dissented. He would hold that where a good agree joint custody faith could not to a award awarded, since, custody should not be under those circum- stances, joint custody is not in the best interests of the chil- joint custody He dren. would reverse the order of but would Wilcox v Wilcox division, property affirm award of gross.
Opinion of the Court Custody — Custody — — 1. Parent and Child Divorce Child Joint — Statutes. Michigan Custody prevents The Child Act neither nor requires joint custody by parents upon of children their (MCL parents’ seq.; seq.). divorce 722.21 et et 25.312[1] Custody — — Custody — 2. Parent and Child Divorce Child Joint Agreement — Parents. divorcing Joint over a child should be awarded where the parents agree joint custody arrangement that a best interests of the child. Custody Custody — — — 3. and Child Parent Divorce Child Joint Objection — Parent. objection joint custody of one in a child’s preclude joint custody best interests does not an award of of a parents upon parents. child both the divorce of the *3 Custody Legal Custody — — — 4. and Child Parent Child Joint Physical Custody. Joint legal custody jointly Joint of a child is concerned with a held right significantly to make decisions which affect the life of a child, such as decisions about the and child’s education health care, joint physical custody while is concerned child living parent. with the Custody — — 5. and Parent Child Child Best of the Interests —Child Statutes. dispute parents custody A between over of a minor child is to be (MCL on decided 722.25; the basis of the child best interests of the 25.312[5]). MSA Custody Physi- — — — 6. and Parent Child Divorce Child Joint Custody Legal Custody — — cal Joint Best of the Interests Child. joint alternating custody An physical award of children of parents improper, joint legal their divorced is even where the where, custody proper, of the children is because of inabil- parents arrangement, ity mutually agree of the to such an physical exchange of the children is not in best inter- of the ests children. 100 Property Alimony — — — of Discretion. 7. Divorce Division alimony upon property the award of division of marital The court; the within of divorce are matters the discretion property Appeals not or of will reverse an award of Court that, occupied position it is convinced had it unless court, the trial it would have reached a different result. Custody Custody — — — Child Joint 8. Parent and Child Divorce — Statutes. prevent divorcing Michigan Custody not Act act does The Child having joint custody parents child from of their or divorced communication, parents have a level of understand- where agreement custody ing joint best such that is in the child’s interests; nothing requiring Custody is in the Child Act there (MCL seq.; preferring custody 722.21 et 25.312[1] seq.). et Custody — — — Best Interests Parent and Child Divorce Joint 9. by Agreement — of Child Parents. custody parents by the child should be ordered where Joint agree arrangement parents can that such an is the divorced child, any such an the best interests of the absent evidence that child; joint contrary to the best interests of the should not be ordered where one a child faith, parents, good does not believe that divorced the best of the child. will serve interests Alternating Custody — — — Parent and Child Child Divorce 10. Custody. parents equal Alternating custody of a child for divorced Ap- periods generally of time is not favored the Court of peals. Custody — — 11. Parent and Child Child Preference of Child. performing preference 12-year-old well in of a child who question school and relative to the is mature social outlook parents which her of her divorced should have strong should control in the evidence that absence of granted parent. to that should *4 Custody — — 12. Parent and Child Child Best Interests of Child. siblings along together, to remain with the custodial The desire determining preference of those must be considered in in whose the best of the will interests children served. Wilcox v Wilcox Opinion of the Court Custody — — Alternating Custody — 13. Parent and Child Child Best Interests of the Child.
Any joint custody arrangement which shifts a child’s from one weekly to the other on a basis disturbs the continuity of the child’s life and is not in the best interests of
the child. Dunnings P.C., & Canady, plaintiff. for Sinas, Dramis, Brake, Boughton, McIntyre & P.C., Reisig, for defendant. Beasley Danhof,
Before: C.J., Cynar, and and JJ.
Cynar, Plaintiff, Wilcox, Elizabeth appeals from the child custody provision as well as the property settlement gross award in a judgment of granted divorce 13, February 1979. The court ordered custody of the two children to be held by plaintiff defendant, Kent Wilcox, with parties to exchange physical cus- tody of both children weekly unless parties agreed otherwise. parties
The were 5, married on or about October 1968, in East Lansing, Michigan, and as a result of this marriage, child, one Wilcox, Frank Sterling was born on December 1969. The child of the by her former marriage, Marni Darr Wilcox, Holmes 8, 1966, born February was adopted defendant. separated were for several months
prior to the filing complaint for divorce in March, 1978. During the separation, the plaintiff had minor children.
As court, found circuit one of the main precipitating factors in the dissolution of the mar- *5 op Opinion the Court find a new defendant’s decision
riage was the partner. 28, 1978, March parte
In an ex order entered order This plaintiff. was awarded on 1978. custody” May to "joint was modified was to have the "joint custody” The nature of this with plain- one week the stay two minor children with the defendant. stay tiff then one week and trial, Dr. At first taken from testimony was Stollak, consulting certified psycholo- E. Garry Michigan State at professor psychology gist the parties with Dr. Stollak worked University. out a suitable in an effort work prior to trial the both before and for plan the the divorce. during pendency beginning September Dr. testified that Stollak the with shared 1978 Marni became dissatisfied to reside arrangement, preferring only Frank, plaintiff. the He also observed with child, healthy relationship had a younger the that he did not want be forced both would, parent he live. In later to choose with which plaintiff’s Dr. stated that testimony, Stollak ar- negative attitude to an alternate custodial views of it. rangement had affected children’s he would not testified that children Finally, meeting the of conduct difficulty standards home, separate for each that an alternate children could beneficial presence and that of a female friend adversely home affect defendant’s would development. children’s Lynn from
Testimony was also heard at Keller, therapist Capital with the mental health Keller, Ms. Counseling previ- Area Center. who Marni, ously expressed interviewed and counseled to live with her opinion preferred that Marni Wilcox v Wilcox op Opinion the Court relationship and that mother the maternal was important more stepfather. to Marni than that with her preferred
She also said children together, negative live but that no effects would they apart. if arise Ms. lived Keller testified as to counseling sessions held with the children and the concluding defendant, that the defendant loved his *6 very children much that he had no desire to an force undesired on Marni. response questions posed by In court, to the trial Ms. Keller stated that an alternate ar- custodial rangement involving periods longer of time than generally preferable. one However, week is Ms. custody, Keller stated further that alternate even longer periods time, with of would work in this case.
Plaintiff testified that she was a better than defendant. She described the defendant anas point "extreme to authoritarian” that Marni involuntarily yelled would urinate if he at her. plaintiff The also stated that when Frank returns arrange- to her under the week-to-week greatly hangs ment, he is withdrawn and onto her days. Finally, plaintiffs for three or four opinion, brought the divorce was about an relationship adulterous of defendant with an- other woman.
Defendant admitted at trial to Marni’s dislike custody. opin- expressed alternate He the further opinion strongly ion, however, that Marni’s was negative suggestions affected of guidance Lynn and that under the Keller his relationship improved with Marni had dramati- cally. Defendant also an denied that adulterous relationship breakup. parties’ caused the marital Finally, suggested he that alternate would the best interests of the children and 100 Opinion of the Court to permit the children arrangement would
such an parents. with both personal close bonds maintain the factors opinion applied an oral court Act, MCL Custody the Child set forth § enu- 25.312(3), each factor 722.23; discussing (a), to subsection respect With merated therein. love, affection, and other with which is concerned (b), ties, which and under subsection emotional disposition compet- capacity concerned love, etc., give the child ing parties respect to subsection parties equal. With found the disposition of (c), capacity and which looks at the food, clothing, child with provide parties problem no etc., there was the court found to factors listed subsec- parent. with either As time the child lived (d), relating length tion environment, the court indicated satisfactory in a long separated very had not been been carried out had joint custody and that (e), respect With subsection some extent. unit did family as a permanence court found that *7 case; in this applicable appear totally to be (f), while, respect the court with to subsection that, it been contended that may have noted while fit, the situation will morally Mr. Wilcox was less recited in subsection itself. As to the factor resolve or problem with the mental (g), there was no respect With parent. either health of physical the (h), around difficulty there was no subsection in doing well neighborhood, and the children were (i), pre- Marni respect school. With to subsection her mother but in of custody ferred the way one or preference had not expressed Frank another. the trial court disposition property,
In the of the marital to the full title to plaintiff awarded apartment owned seven-unit jointly home and a Wilcox v Wilcox Opinion of Court building. The home equity marital was divided equally parties between the but was not made payable to the until plaintiff defendant moved, or assigned home, sold her in interest remarried, died, or the youngest child the mar- riage age. reached years plaintiff The also received full title to a second apartment building owned which had an equity of $3,000. The trial court then added the equity of the third of the property seven-unit build- ing, $73,000 a total in After equity. deducting $15,000 upon plaintiff’s from this total based original building, investment the seven-unit remaining court divided the equity value into $29,000 equal shares. Out defendant’s share $7,500 paid was ordered to be as gross. one
Approximately half states have en legislation acted concerned with the issue of joint custody. equalized parental Some states rights through child custody legislation.1 Under statutes,2 California’s 1980 joint is alternative, the court’s first and preferred and the required to enumerate if its reasons it refuses to award Joint custody. custody under the California as code defined "an order award ing child or children to minor both parents providing physicál custody shall be shared parents way such a as to assure frequent the child children and continu ing however, parents; provided, contact both legal such order may award awarding without joint physical custody”. Michigan 19703 nei- Custody Child Act of Freed, Reform, Legislative Custody: Foster & Joint 16 Trial 22 1980). (June, (West). *8 See Cal Civ §§ Code 4600.5 25.312(1) seq.; seq. MCL 722.21 et et App 100 Mich Opinion of the Court In requires joint custody. prevents ther nor Schilleman, 446; 232 v Schilleman (1975), lv den (1975), Mich 769 NW2d 737 that, generally it did not while Court indicated orders which alternate favor time, equal periods for parents children between affirmed decision that case was the trial court’s that the trial say Court could not because the of discretion in palpable abuse court committed custody. such alternate awarding the best interests standpoint from the Viewed child, follow- when workable joint custody, of the divorce, to a continuity affords access ing a in the life of a participation and active parent We are accord with following a divorce. child can that, divorcing parents where colleague our arrangement is the agree child, trial courts interests of the serves the best in the unu- except, perhaps, give approval, should finds evidence that case a trial court sual where best inter- contrary such an However, we are not in total the child. ests of parent that, faith does good agreement where serve the best will not believe child, should not be joint custody interests First, it neces- over an objection. awarded such alternative, or shared to define the term sary joint, meaning understanding since the of its custody, between joint differ. There is a difference may making legal custody, which is concerned of a affect the life significantly decisions which child, which is con- joint physical custody, There living parent. child with the cerned with the legal where multiple are situations parent deprives the other awarded to a sole with the sharing making decisions concerned dental, care, education, health as well child’s other *9 Wilcox v Wilcox Opinion of the Court as other decisions the life of the child. Whether plaintiff agrees the to joint not, or custody the support facts an award legal of of custody the children in this case. 722.25;
Under MCL 25.312(5), MSA a dispute parents between over custody of a minor child is to be decided on the basis of the "best interests of the child”. No doubt 3(j),4 provides which for consid § eration the court of "any other factor considered by the court to be relevant to a particu lar child custody dispute”, was added encompass significant unique fact situations which other might wise be overlooked or not considered. Cer the tainly, "best interests of the child” cannot be but, rather, viewed in a vacuum must be viewed from the standpoint things of how actually are a specific case.
The granting of joint custody agreed is not to by parents both in this case. We have a situation plaintiff, where the embittered number of events, here, several of which are mentioned opposed to the award of joint It custody. does not matter whether acceptance there is rejection the defendant, life style who took on an- other mate. Defendant has his side of the story. However, when viewed plaintiff’s from the posi- tion, the strong feelings she has are accurately illustrated by her give indication that she will up altogether rather accept than cus- tody.
Further, plaintiff’s viewpoint differs from the defendant’s in regard to the property division. The is not willing accept divi- property sion, particularly as it concerns the Woodruff apartment Street building, which an equity has $70,000. (1) Plaintiff contends that: initial MCL 722.23(j); 25.312(3Xj). op Opinion the Court (2) family; of the came from her side investment was a marriage defendant during part (3) and, earnings student; were yearly defendant’s except year for the last or two meager This tension marriage. factor exacerbates be- parties tween the relative child issue. setting, under more alternate
Even favorable workable, although may its physical custody, Here, order provides problems. exchange physical shall *10 or Friday on of each week make minor children agreeable is mutually whatever other mutually agreeable to With what is we parties. the However, on the facts before us. no difference from to the transfer of one physical can only on alternate weeks com- other pared of a tennis ball back and forth travel from side of the tennis other. one in their Such of the children is not best movement interests.
It trial court was correct finding is our ordering legal parents. both Nonetheless, we find court erred or awarding joint physical custody alternate minor children in this case. The trial court’s order the minor children exchange custody of physical physical on week set aside and Friday each minor to Plain- both children awarded tiff, Wilcox, Elizabeth to reasonable visita- subject defendant, rights tion Wilcox. Kent marital authority trial court divide between the to a divorce arises property 25.99, 552.19; under court’s MCL and the provided authority statutorily order 552.23; in MCL MSA 25.103.
It
of marital
is well settled
division
87
Wilcox v Wilcox
Opinion op the Court
or an
property
award of alimony is a matter
within the discretion of a trial court. Johnson v
Johnson,
418;
346 Mich
Pin-
(1956),
"The property division of in a divorce action is not governed by any rigid rules or mathematical formula. depends Each case particular on the facts involved. * * * portion "The of property awarded to party including each de- pends upon the its equitable involved, all the factors following: property, source of contribution towards acquisition, life, years of married the needs of parties, earning ability their and also the cause for divorce.”
Further,
this Court will not reverse an
award
property
that,
it
alimony unless
is convinced
had it occupied the trial court’s position,
it would
Paul,
result. Paul
have reached a
v
different
43;
(1960),
Mich
We affirm the property settlement and alimony 100 Mich by Beasley, J. legal provisions, gross well as as in custody parents. However, reverse the we in both custody physical and award determination plain- physical children to minor of both subject Wilcox, to reasonable visita- tiff, Elizabeth rights defendant, There- Kent Wilcox. in the tion fore, court for a to the trial remanded
this case is support reasonable and of child determination rights. are awarded. No costs visitation Danhof, C.J., concurred. following opinion (dissenting). The Beasley, majority proposed originally as a circulated
was carefully scholarly opinion. and Review of my opinion brother, becomes the which drawn majority, opinion. change my persuade tome does not joint custody case. is a This judgment February divorce 13, 1979, On was entered divorce statute1 the no-fault under dissolving marriage. parties’ ruling regarding case, trial court’s In this judg- visitation, as set forth and provides: divorce, ment ADJUDGED that "IT IS AND ORDERED herein, parties to-wit: of the two minor children 1966, 8, Wilcox, February Darr Holmes born Marni 1969, 17, Wilcox, shall be Stirling December Frank born Wilcox, Wilcox, Kent plaintiff, and jointly in Elizabeth exchange physical parties The shall defendant. of the week, make Friday of each minor children on mutually are arrangements which whatever other communicate parties. shall agreeable school, or other events any social with reference children. interests of the which affect the activities 552.19, 552.6, 552.7, 1, 1972; January MCL 1 1971 PA effective 25.86, 25.87, 25.99, 552.29; 25.107. *12 Wilcox v Wilcox J. Dissent During the parent, time is with the other parent rights non-custodial tion shall have liberal of visita- it as is the intent this order that the children full relationship have a and rich parent.” with each Plaintiff mother appeals joint from this provision and also from the property settlement and gross alimony award. nothing
I find in the Michigan Child Custody Act of 19702 preventing joint in those parents, though cases where even divorcing or divorced, communication, level under standing agreement so if obviously necessary joint custody is to be in the truly child’s best token, interest. the same By neither do find in the anything requiring Child Act Custody preferring joint custody. divorcing parents
In cases where can agree that joint custody arrangement is serves the child, best give interests of trial courts should approval, except, perhaps, unusual case a trial where finds evidence that such an is to the contrary best interests But, good the child. where a faith does not believe that custody will serve the best child, interest should not be awarded over an such objection. judgment gave
This divorce the trial effect opinion bench, which judge’s he rendered from the providing, as part, follows: Court, Court, course, to custody "The as as —The aware, particular aspect counsel has considered that matter, in hearings before on and counsel did Court, choose their statements did not choose go great into that detail. matter course, obligated apply Court factors "Of MCL et 722.21 seq.; 25.312(1) et seq. App 100 by Beasley, *13 Act, being MCLA 722.23. Custody forth in the Child set It enumerating factors, those without appears to the Court that here, great can any them in detail we all them, that set forth in that to the factors are as read statute, I have it appear particular the and section of that before be affection, me, ties to love and emotional parties capacity of the equal parties; these between love, guidance ap- and give to pears equal education and does anyone affection the children parties; continuation between the their creed, religion raising in its or the child part any on the appear objection not to be creed, particular being in her if to Marni raised parties to the do not seem be diame- therefore any, and trically opposed, or great opposed, any to extent to religion. raising child in its proper education and the provide children capacity disposition and to the "The food, care, problem clothing, there is no in medical with the Court’s parent. part mind on either stable, in length of time the child has lived "The environment, of con- satisfactory desireability [sic] tinuing maintaining continuity, these long, for a separated very considerable not been arrangements joint custody have been period of time family Permanence of the out to some extent. carried totally unit, appear applicable be that does not to Court. situation before competing parties. suppose I there is "Moral fitness of Wilcox, having acquired Mr. an- some contention that other interest, fit, morally I don’t less but believe is and of course has harmful been being granted, possibly judgment divorce particular situation will resolve itself. appear to physical "Mental and health does not be problem. physical health of either any The mental parent. home, school, record, children community "The these neigh- difficulty appear any do not to be around
borhood; school, they doing are well school. "Any preference of the child. reasonable "Now, Marni, child, expressed to the Court the oldest prefer in the of her that she would to be mother, Frank time time her and from visit father. Wilcox v Wilcox expressed meaningful position has other. no way one or the "Now, problems it seems to Court that one of the joint custody during period attempt worked, with was Mrs. Wilcox’s reluctance which this this it to see to that it natural, suspect. approve didn’t She granting manner, Court’s the order and there- going receptive fore to attempting to work it out. time, however,
"At the same that does not stand in credit; for, give her can’t her credit at least view, attempting destroy Court’s the effect of this order, or negate give Court’s credit for its effect. So I can’t her mildly So I must
that. chastise her on the record. my
"It seems to me discussions with children *14 they that would be more arrangement amenable to this encouraged discouraged. if it were rather than To some I extent Mrs. believe that Wilcox has to take the blame discouragement. purpose for that may So for whatever it serve, is mildly she admonished here the Court. going "The Court is to continue the arrangement, though appeared even it that is Marni entirely receptive doing not Mr. Marni to it. The is of Court aware to
Wilcox’s desire not force that issue and allow to try problems continue to to work out own her way. in her own discuss the matter opportunity The Court has had the to her has opportunity
with and had an impressed to observe It ability Marni. is with her give thoughtful things. a and reflective consideration to intelligent 12-year-old Court, She is an individual. of course is reluctant to allow minor kind a of direct However, the what realistic. Wilcox and Court should do. be we have to It appears encouragement that with from Mrs. continuing Mr. benign Wilcox kind ne- will, situation, glect, itself you if may I think it work out. rate, any
"At the at present Court views that that the is They time not harmful to either child. understand the I they situation. think can work it. At the time, encourage- I got same ment of that think there has to be some
arrangement. "Therefore, respect, the Court feels that this that high on support payment was too court-ordered encourage- occasion, prior proper not and did allow Therefor, going support at set ment. Court Now, per per actually child. that is $50.00 week $25.00 child, per the custodian of per you if consider that week week, every according to the only has other them terms them that I don’t feel is an order. So unfair amount. hand, encouragement if is that the the other "On course, visit, support not child Perhaps that would be an induce- that much.
won’t be ment or some of the encouragement necessary carry in order out about, and things Stollak talked that Dr. others, remain request of Mr. Wilcox to respecting this contact with the children and a constant father been meaningful relationship which has a more have what the counsel, Court, I am sure seen over as this and Mr. period of time divorces such others. part to continue to expressed has the desire Wilcox of going Court is these and the the lives of with, course, give opportunity, under- him that changed judgment may be at standing the Court’s time, working particular out. if that situation is any arrange- custody may continue on the same "So I previously by the Court. think that ment as ordered too, think really but don’t order set forth visitation provided. I necessary joint custody is where but, provided, any at exactly recall the order don’t rate, what nature, to that arrangement of that or similar an nature, judgment fact consideration granted, has been shall enter.” divorce *15 outset, I alternate At the note that orders which equal parents custody for of the children between periods generally by this of time favored are parents indicated, I where Court.3 As believe that agree joint custody it, a ar viable and desire rangement chil interests often in the best
3
(1975).
v Schilleman,
446;
Schilleman
Contrary judge, penalize decline to her for strong her desire which, a wish incidentally, was shared daughter who was then almost 13 and is 14 now son who is now 11. finding,
In so
I have
carefully
reviewed
examination,
On
testimony.
direct
defendant hus-
4 Id.
Bahr,
(1975),
App 354;
5 Bahr v
60 Mich
230
430
lv
NW2d
den 394
(1975),
Outcalt,
App 392;
794
Mich
Outcalt
v
band woman, as follows: his involvement with another stand indicated "Q wife has from witness Your you advised your separation was because marital woman, upon your with another her involvement that it Taylor Mr. it was indicated examination cross year ago today. Is that the case? awas Yes, "A it is.” and answer were as follows: question
The next that time? you Mrs. Wilcox at "Q What did advise I not feel we had made my "A I advised wife did together relationship; attempts put to a of our a success that was happy happy; I not with the I not that was existed; relationship that I did not relationship as the help to us to us live anything that was available see together. Something to that effect.” longer to entitle one required fault is no Proof of fact, to divorce; is irrelevant whether a fault a But fault was divorce. adjudicate case, a in this both as factor to to relevant 3(f) relating under subsection be considered plain- explanation why fitness and as an moral relationship her preferred tiff mother to sever defendant father. here, is the
Where, as cause of divorce woman, I preference for another expressed father’s give judge’s in the trial conclusion cannot share he, marks, for her refusal the mother bad as did to maintain cooperate plan requires her her constant, close, continuing relationship with care, custody, upbring- concerning ex-husband situation, this In ing and control of their children. by placing served the children’s best interests are after due in one or the other their factors. statutory consideration Wilcox v Wilcox determining that, further find the best interests of the case, children in this the trial gave weight insufficient to three other fac (1) preference tors: the reasonable children,9 *17 (2) desirability maintaining continuity,10 (3) any by other factor considered the court to be 11 particular custody dispute.* relevant to a child step case, In this Marni, the defendant’s daughter, only who at the time of trial was a expressed strong month 13, or two short of preference to live with her mother.12 The trial specifically found that Marni was an intelli gent ability give child and had the reflective thoughtful consideration to the matter. Under preference circumstances, these I feel that Marni’s simply to live with her mother should not conjecture may dismissed on the that she acqui been influenced her mother’s refusal give encouragement esce in and to the trial court’s joint custody plan, rather, but I hold that her expressed preference should receive substantial weight. preference
While I do not believe the of a child only is the decision, factor in where other equal, factors are at least I believe that where a performing satisfactorily 12, child is over in school reasonably and preference mature social outlook the child’s
as to should control unless strong contrary. there is other evidence to the age I note that Frank, the court found that nine meaningful expres- at trial, the time of made no preferred sion as to whom he to live with. How- 9 25.312(3)®. 722.23®; MCL MSA 10 722.23(d); 25.312(3)(d). MCL MSA 722.23(j); 25.312(3)®. MCL Plaintiff and defendant were married October 1968. Marni previous marriage, the child of mother has who been adopted by plaintiff. defendant with the consent of by Beasley, employed by expert ever, that I also note that Frank had stated testified husband defendant preferred Thus, his mother. to live with he that pref- give weight custodial to Frank’s I less while younger, he is than Marni’s because erence preference was entitled that Frank’s would hold the chil- I also believe some consideration. points together preference stay dren’s obvious will be interests their best the conclusion together by keeping in the them served their mother. preference the reasonable from
Aside gave the trial court I also find weight importance of maintain insufficient ing continuity Any lives.
in the children’s continuity will disturb significant degree because life to a certain child’s decisions upon depend up-bringing where will *18 living joint in custodian is and which child is arrangement, custody charge. joint this I find that custody from one to another which shifts continuity weekly basis, in the chil disturbs on a to and not in the detrimental dren’s lives and is interests of the children.13 best By my opinion here, I intend to discour- do not parents age joint custody who of children between custody joint However, it. I believe that both want only a child where interests of will serve best objective parents genuinely believe both present joint custody case, In the is desirable. recognize judge appeared in that fact the trial 909, p provides 2d, Separation, as § 24 Am Jur Divorce follows: shifting warranted, frequent custody is a "Where some division of unnecessarily and should harmful of the child from home to home is Thus, committing child to permitted. the courts should avoid not be one home although weekend, during for each and to another home the week appellate may courts have cases be found wherein omitted.) (Footnotes shifting custody.” for such affirmed an order Wilcox Wilcox v disapproval reference to
his the mother’s his custody plan. joint parents case, this
In the balance between the on statutory the scale factors was not and is not equally preference balanced. The definite of these given respective ages, children, placing their for custody together mother, their in their with the greatly preponderates favor, other in evidence her any possible advantages joint custody over of this arrangement and mandates reversal of trial court’s order. approving joint custody
In in cases where the parents joint it, I want do not intend to establish custody custody as a third viable alternative to the mother the father. I do not analysis requires consider that correct here choice between custody. in the mother and joint custody Rather, I rule would out where, here, mother, reasons, as for sincere voluntarily does custody arrangement. choose to enter into a Also, there is factor here which makes another joint custody unnecessary. parties an award of together, live close apartment as defendant has an rented plaintiffs
a few from blocks home. proximity easy This close it makes paramount, for the whose interests are frequent par- contact noncustodial necessity changes ent without the for constant continuing relationship. to achieve this Accordingly, I find erred granting joint custody case, in this set and would aside the trial court’s order and award *19 plaintiff, of both minor children Eliza- subject Wilcox, beth in to reasonable visitation defendant, Kent Wilcox. argues
Plaintiff next trial erred 75 100 App 98 Mich property settlement computing amount disagree. I gross. alimony It a division marital is well settled is a matter or award of within property trial court.14 This court will the discretion of the that, it is had it been unless convinced reverse it would have reached position, in the trial court’s result.15 a different
I
I would have reached
result
say
cannot
the trial court. Accordingly,
from that of
different
of alimony
affirm the
court’s order
would
property settlement.
part
and reverse
Consequently,
I would affirm
remanding to the trial court for
determi-
part,
rights.
and visitation
support
nation of child
14
Johnson,
Pinney
(1956),
418;
v
v
Mich